Rua v Olofia [2016] SBHC 211; HCSI-CC 240 of 2016 (24 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 240 of 2013

Between: Jeremy Rua - Claimant

And: Aaron Olofia - Defendant

Counsel: Radclyffe A for the Claimant
Counsel: Bird M for the Defendant

Date of Hearing: 15^th November 2016
Date of Ruling: 24^th November 2016

RULING ON APPLICATION TO STAY ORDERS, TO SUSPEND ENFORCEMENT ORDERS AND FOR STAY OF NOTICE OF EVICTION

Introduction

The Defendant applied to stay orders, to suspend enforcement orders and stay of notice of eviction under Rules 17. 55 and as well as 21.8, 21.9 and 21.10 of the Civil Procedures Rules 2007

The Defendant seeks the orders to stay orders of 5^th April 2016 on the ground the order was made in the absence of the Defendant and so the consequential orders as enforcement orders and notice of eviction also be suspended.
Defendant also uses the Civil Case no. 165 of 2016 as his ground in this application when or as he named the Claimant as 7^th Defendant.

Brief Background

A Category A Claim seeking possession and consequential orders was filed by the Claimant against the Defendant on 12^th July 2013.

On the 17^th September 2013, a Defence was filed on behalf of the Defendant by DNS & Partners. The crux of the defence was in relation to section 195(c) of the Lands and Titles Act (Cap 133).

On 17^th March 2016, a trail for the case was fixed for 5^th April 2016 and notice was issued by the RHC office to the counsel Andrew Radclyffe for the Claimant and DNS & Partners for the Defendant.

On the 5^th April 2016, the court entered judgment in favour of the Claimant in absence of the lawyer for the Defendant and the defendant himself.

An enforcement order was signed on 17^th June 2016 and notice of eviction was executed on the 18^th August 2016.

The Defendant filed this application to stay orders on the 14^th September 2016 and a sworn statement in support was filed on 21^st September 2016.

Claimant opposes the Application

The application is opposed by the Claimant on the reasons that there was no appeal against the judgment of the 5^th April 2016, the application to set aside the orders was made several months after the orders and when the consequential orders as enforcement orders and notice of eviction in process and execution.

The use of the recently filed case CC no. 165 of 2016 by the Defendant as ground to assist in this appeal are not proper, as the Claimant is not a party to the alleged acquisition or whatever transition of the land.

When the Defendant or his lawyer failed to attend the trail on 5^th April 2016 and no reasons were provided to the Court for their absence, counsel for claimant applied to proceed with the trail and court allowed him to do so. Counsel on the presentation for his client’s case informed the court that he relied on the pleadings now before the court.

Upon that the court granted judgment to the Claimant with the cost to be assessed if not agreed.

Defendant’s case in the application

There is no reason provided by the defendant for his none appearance or his lawyer DNS & Partners at the trail on 5^th April 2016 except in his sworn statement filed 21^st September 2016 purportedly to support this application that he referred to the Civil Case no. 165 of 2016 as his ground in this application when or as he named the Claimant as 7^th Defendant.

Civil Case no. 165 of 2016

At this juncture, it is proper that I address the use by the Defendant of the Civil Case no. 165 of 2016 as ground in this application. The judgment was entered on 5^th April 2016 and the case referred to was filed on 19^th April 2016. By the copy of that case’s claim it is for rectification of titles that appears not concern the claimant in this case, but the original registered owners of parcel no. 192-016-135 with other parcels of land.

It is my view that filing a case to assist a person of another matter or case before a court is not a good reason unless it is properly joined or consolidated for the purpose or so. The same can be said as for the purpose of further delaying the process of a case which another party is not a culprit in such action. This ground as it stands cannot be a better reason for the orders sought.

Issue

There may be related issue as to none the appearance of the Defendant or his counsel however the main issue is whether it is proper in law to have the judgment in default of 5^th April 2016 set aside and so as the consequential orders be stayed.

The judgment and orders were entered against the Defendant on the reasons that he and his lawyer did not appear at the hearing. And it is not disputed the Defendant did not appear at the court hearing on 5^th April 2016 nor his counsel DNS & Partners when the judgment was entered against the Defendant. There is also no appeal on the judgment except this application to set aside the Default judgment with sworn a statement in support of the application. The sworn statement made reference to the CC case no 153 of 2016 which I have earlier referred to and the matters and circumstances that relates to title of the land was transferred to the Defendant.

At the date for the trail and from the record of proceeding Mr. Radclyffle told the court that Mr. Marahare of DNS & Partners had earlier acted the Defendant and he informed him that he had step down to represent the Defendant.

From case file record, a notice dated 17^th March 2016 for the hearing of this case on 5^th April 2016 was sent to DNS & Partners but on the hearing there was no information from them that they had adviced the Defendant for their standing down or withdrew to represent him except to what Mr. Marehare told counsel Radclyffe.

The above explains the failure by the defendant to defend the Claim on 5^th April 2016 when a judgment orders were made against him.

The Law

The Civil Procedure Rule 2007 provides for the management of civil cases and to avoid delay it provides for judgment to be entered against a party who does not appear to the court for his case. And rule 17. 55 (a) of the Rules gives power to court to set aside an order made in the absence of a party and rules 21.8, 21.9 and 21.10 for suspending the enforcement of an order. While it so a party whom the judgment is entered against must come back to court with good reasons in order to reinstate his case.

It is important to note the test to be applied on the application to set aside orders of the court and the common cases are Kayuken Pacific Limited v. Harper [1987 SILR, 54, Ross Mining (SI) Ltd v Slate and Gorden [2001] SBHC 162; HCSI – CC 230 of 1998 (23 March 2001, Djokovic v. Solomon Star Limited and Ofani Eremae HC-CC No. 478 of 2006. Notably it relates to defence and the applicant to satisfy in order for the court to grant the order to set aside the default judgment or orders, follow the application to stay.

And there are two matters the applicant must address as particularised by brother Judge Faukona in Levers Solomon Ltd v Leni [2008] SBHC 110; HCSI-CC 349 of 2007 (31 October 2008). The Applicant has to satisfy the court that he has reasonable excuse in delay in not filing defence in time and the Applicant a viable defence or reasonable prospect of success.

The non appearance of the Defendant to defend his case is on the reason the notice of hearing was served to his counsel who had withdrawn to represent the Defendant.

For this case, the defence has been filed on 17^th September 2013 and viable defence or reasonable prospect of success would be the matter and circumstances that relates to title of the land was transferred to the Defendant as referred to by the claimant in his sworn statements.

It is therefore clear or the reasons for non-appearance by Defendant to Court or his previous lawyer on that day and so as there is shown a viable defence for this case

And it is reasonable and just to make to set aside the orders of 5^th April 2016, stay the consequential orders of enforcement and notice of eviction.
Orders of the Court

1. Application to set aside default judgment dated 5^th April 2016 be allowed,
   
2. That enforcement orders and notice of eviction be stayed until trial of the matter,
   
3. Case is to be listed for the trail, and
   
4. Cost is awarded to the Claimant to be assessed if not agreed.
   

THE COURT

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Maina LR
PJ